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NDP joins call for Tories to refer prostitution bill to Supreme Court

The NDP is joining the calls for the government to send the newly tabled prostitution bill directly to the Supreme Court of Canada for an opinion on its constitutionality.

Critics are convinced the Conservatives' new prostitution bill will not pass constitutional muster and turns its back on the Supreme Court’s findings last December that the law should not place prostitutes further at risk. (JONATHAN HAYWARD / THE CANADIAN PRESS)

OTTAWA—The NDP is joining the calls for the government to send the
newly tabled prostitution bill
directly to the Supreme Court of Canada for an opinion on its constitutionality.

NDP justice critic Françoise Boivin took up a challenge by lawyer Alan Young, an Osgoode Hall Law School professor who said prostitutes should be spared the cost, risk and uncertainty of trying to litigate protections for their health and safety all over again in the courts.

It could take up to six years for another challenge to wend its way up to the country’s top court.

The bill brings in sweeping new changes aimed at ending demand for prostitution by targeting clients, inspired by similar laws in
Scandinavian countries
. But several provisions are so broad that critics are convinced it will not pass constitutional muster and turns its back on the Supreme Court’s findings last December that the law should not place prostitutes further at risk. It was Young who represented three women at the top court in what became known as the Bedford case.

Justice Minister Peter MacKay did not directly reply to her call to send the bill via a reference to the high court — as the Conservatives have done with proposals for a national securities regulator, a change to the Supreme Court of Canada Act and for Senate reform. The government lost its case in all three reference cases on its legislative proposals.

MacKay refused to answer reporters’ questions after leaving the Commons.

However, justice department officials speaking to the Star on background explained safeguards in the bill would allow prostitutes who refuse to quit to work safely, while protecting those with whom the prostitute has a legal or moral, non-coercive, relationship with, such as spouses or children.

Nevertheless, Liberal MP Irwin Cotler has demanded via a motion in the Commons the production of internal justice department opinions that address its constitutionality.

In an open letter to MacKay released to the Star, Young also demanded the internal legal opinions, saying the law seems to be “a political or ideological solution without due consideration of whether this (. . . ) adequately addresses the constitutional demands of the Charter of Rights and Freedoms.”

Boivin challenged MacKay on the amount of money the government is saying it will spend to support prostitutes to leave the industry.

“$20 million, a drop in the bucket, not even budgeted yet.” Later she said it was “nothing” and yet wondered if the bulk of it would go to church-based or faith-based groups who support the government’s approach, rather than groups like Toronto’s
Maggies
.

Bill C-36, makes it an offence to buy sex or to communicate with anyone anywhere for that reason. Jail penalties range from 18 months to five years. Mandatory minimum $500 fines would apply — and increase to $1,000 for a repeat offence. Those fines would double if the exchange happens in a public place “where children might reasonably be expected to be present.”

But the new scheme carries a criminal ban on certain communications by prostitutes, too. It retains the ban under the old law on conversations with clients that stop or impede traffic. But it would also criminalize prostitutes for communicating in public places about selling sex where children could reasonably be present, under threat of six months in jail.

Prostitutes would be allowed to advertise their own sexual services, but the bill criminalizes any third-party such as an escort agency or massage parlour that advertises their services.

In fact, the bill proposes sweeping new powers for police to go to court to get judicial orders to seize printed ads, or demand Internet service providers remove websites, and reveal the name and address of the person who posted it — in the same way the Criminal Code allows child porn websites to be tracked. Conviction could bring jail terms from 18 months to five years.

Vancouver-based Pivot Legal Society, which advocates for prostitutes’ legal rights and safety, says it will “radically change the sex trade in Canada” and make it impossible for prostitutes to work in safer indoor locations if they cannot allow agencies or employers to reach clients through advertising.

“This is a very misguided law, which is contrary to both the letter and spirit of the Supreme Court’s decision in Bedford,” said Pivot’s written analysis. “There is little question that Canadian courts would declare this new prohibition on advertising to be unconstitutional.”

Boivin wondered if the prohibition on advertising would be an unjustifiable limit on free speech, or be treated like tobacco advertising and be deemed lawful.

There’s no outright ban on brothels. The bill would allow two prostitutes who live together to offer their own sexual services for sale. But it criminalizes anyone else who employs them or derives material benefit from their sex-for-fee services, anyone who lives with them in an exploitive or abusive relationship or anyone who supplies drugs or alcohol to encourage them to engage in prostitution.

Justice officials say the provision would not catch a bodyguard or driver as long as there was no coercion or encouragement of the prostitution activity.

There are other exemptions for people whom prostitutes might casually interact with or get services from: grocers, accountants, the person who clears their driveway or mows the lawn, a pharmacist; and for anyone a prostitute has a legal or moral obligation toward — for instance, anyone who receives spousal or child support, or receives a gift from a prostitute, or a child or aging or disabled parent who is supported by a prostitute’s earnings. None of these would be interpreted as criminally benefitting from prostitution.

Pivot Legal Society’s analysis of the law says it “will only apply to occasional ad hoc services for sex workers, and does not allow sex workers to establish regular secure conditions for themselves.”

On top of new prostitution-related offences, the bill modernizes and increases penalties for existing offences of procuring (pimping) and child prostitution or trafficking offences. It proposes to define weapon in those offences as anything that is intended to restrain a person such as handcuffs, rope or duct tape.

Correction - June 10, 2014:
This article was edited from a previous version that mistakenly said Alan Young is a professor at the University of Toronto.

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